NOBLE M. PAIKADAversusUNION OF INDIA

                [2024] 3 S.C.R. 1249 : 2024 INSC 241

                             Noble M. Paikada
                                    v.
                              Union of India
                  (Civil Appeal Nos. 1628-1629 of 2021)
                                21 March 2024
               [Abhay S. Oka* and Sanjay Karol, JJ.]

                           Issue for Consideration
       Item 6 in the impugned notification which granted exemption from
       requirement of prior Environmental Clearance (EC) for extraction
       or sourcing or borrowing of ordinary earth for the linear projects
       such as roads, pipelines, etc., if provided a blanket exemption
       which was arbitrary and violative of Article 14 of the Constitution
       of India.

                                  Headnotes
       Environment (Protection) Act, 1986 – Environment (Protection)
       Rules, 1986 – r.5(4) – Constitution of India – Articles 14, 21
       – First EC notification provided that certain projects falling
       under categories set out in the Schedule thereto would require
       prior EC from the concerned Regulatory Authority – Second
       EC notification was issued adding Appendix-IX to the first EC
       notification, providing for exemption to specific categories of
       projects from the requirement of obtaining EC – Impugned
       notification substituted Appendix-IX which provided that prior
       EC will not be required inter alia for item 6 i.e. for extraction
       or sourcing or borrowing of ordinary earth for the linear
       projects such as roads, pipelines, etc. – Challenge to – NGT
       held that the exemption u/item 6 should strike a balance and
       directed Ministry of Environment, Forest and Climate Change
       to revisit the impugned notification – Review theragainst also
       dismissed:
       Held: Before the issue of the second EC notification by which
       Appendix-IX was incorporated, the procedure of inviting objections
       to the draft notification was followed, and the objections were
       considered – There was no reason to dispense with this important
       requirement before publishing the impugned notification – Article
       21 guarantees right to live in a pollution-free environment –
       Citizens have a fundamental duty to protect and improve the
* Author
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    environment – Therefore, the participation of the citizens is very
    important and is taken care of by allowing them to raise objections
    to the proposed notification – Citizens being major stakeholders
    in environmental matters, their participation cannot be prevented
    by casually exercising the power under sub-rule (4) of r.5 – No
    document recording the satisfaction of the competent authority
    about the existence of public interest and the nature of the public
    interest was produced by the Ministry – The drastic decision to
    invoke sub-rule (4) of r.5 was made without any application of
    the mind – Hence, the decision-making process was vitiated –
    Impugned notification was issued two days after the nationwide
    lockdown was imposed due to the COVID-19 pandemic – At that
    time, the work of linear projects, such as roads, pipelines, etc.,
    had come to a grinding halt – So, there was no tearing hurry to
    modify the EC notifications – Inclusion of item 6 of the substituted
    Appendix-IX illegal – Further, there was no specification about
    the quantum of ordinary earth which can be extracted on the
    basis of the exemption – “Linear projects” were not defined –
    Without the definition, it is difficult to imagine which projects will
    be termed linear projects – The term “linear projects” is very
    vague – The process to be adopted for excavation was also
    not set out – Thus, item 6 is a case of completely unguided
    and blanket exemption, which is per se, arbitrary and violative
    of Article 14 – There is no provision for setting up an authority
    which will decide whether a particular linear project is covered
    by item 6 – No steps taken to revisit item 6 of the impugned
    notification, as directed – Notwithstanding the specific directions
    issued in the impugned judgment, no safeguards were provided,
    such as laying down processes, the mode and the manner of
    excavation and quantum – Item 6 of the substituted Appendix-
    IX forming part of the impugned notification and item 6 of the
    amended impugned notification (issued during the pendency of
    the present appeals), struck down and quashed. [Paras 22-25,
    28, 31, 32]
    Environment (Protection) Act, 1986 – s.3 – Power of Central
    Government to take measures to protect and improve
    environment – Environment (Protection) Rules, 1986 – r.5 –
    Prohibition and Restriction on the location of industries and
    the carrying on processes and operations in different areas:
    Held: s.3 of the EP Act must be read with r.5 of the EP Rules –
    r.5 has been enacted to give effect to clause (v) of sub-section
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                    Noble M. Paikada v. Union of India


     (2) of s.3 of the EP Act, which empowers the Central Government
     to put restrictions on the areas in which industries, operations or
     processes shall not be carried out or shall be carried out subject
     to certain safeguards – Further, Sub-rule (4) of r.5 empowers
     the Central Government to dispense with the requirement of
     publication of notice under sub-rule (3) of r.5 when it appears to
     the Central Government that it is in the public interest to do so
     – Thus, sub-rule (4) of r.5 is an exception to sub-rule (3) – The
     exception can be invoked only on the grounds of public interest.
     [Paras 15, 19]

                             Case Law Cited
           Deepak Kumar & Ors. v. State of Haryana & Ors. [2012]
           4 SCR 819 : (2012) 4 SCC 629; Hanuman Laxman
           Aroskar v. Union of India [2019] 5 SCR 916 : (2019)
           15 SCC 401 – referred to.

                                List of Acts
     Environment (Protection) Act, 1986; Constitution of India; Mines
     and Minerals (Development and Regulation) Act, 1957.

                             List of Keywords
     Environmental Clearance; Prior Environmental Clearance;
     Environmental Clearance notification; Blanket exemption;
     Regulatory Authority; Linear projects.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1628-1629 of
     2021
     From the Judgment and Order dated 28.10.2020 of the National Green
     Tribunal, New Delhi in OA No. 190 of 2020
                         Appearances for Parties
     Ms. Anitha Shenoy, Sr. Adv., Ms. Nishtha Kumar, Vanshdeep Dalmia,
     Ms. Ayushma Awasthi, Ms. Namrata Sarah Caleb, Ms. Pariksha,
     Advs. for the Appellant.
     Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Ms. Swarupama
     Chaturvedi, Ms. Ruchi Kohli, Ms. Shradha Deshmukh, Madhav Sinhal,
     Advs. for the Respondent.
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                Judgment / Order of the Supreme Court

                                 Judgment
     Abhay S. Oka, J.
     FACTUAL ASPECTS
1.   These appeals take exception to the judgment and order dated 28th
     October 2020 (for short, ‘the impugned judgment’) passed by the
     National Green Tribunal, Principal Bench, New Delhi (for short, ‘the
     NGT’). There is also a challenge to the order dated 24th December
     2020, by which, the NGT rejected the review petition filed by the
     appellant for seeking review of the impugned judgment.
2.   A notification was issued on 14th September 2006 (for short, ‘the first
     EC notification’) by the Ministry of Environment and Forests (for short,
     ‘MoEF’) in exercise of powers under sub-section (1) and clause (v)
     of sub-section (2) of Section 3 of the Environment (Protection) Act,
     1986 (for short, ‘the EP Act’) read with clause (d) of sub-rule (3) of
     Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘the
     EP Rules’). Clause 2 of the first EC notification is material, which
     reads thus:
          “2. Requirements of prior Environmental Clearance
          (EC):- The following projects or activities shall require prior
          environmental clearance from the concerned regulatory
          authority, which shall hereinafter referred to be as the
          Central Government in the Ministry of Environment and
          Forests for matters falling under Category ‘A’ in the
          Schedule and at State level the State Environment Impact
          Assessment Authority (SEIAA) for matters falling under
          Category ‘B’ in the said Schedule, before any construction
          work, or preparation of land by the project management
          except for securing the land, is started on the project or
          activity:
          (i)   All new projects or activities listed in the Schedule
                to this notification;
          ii)   Expansion and modernization of existing projects or
                activities listed in the Schedule to this notification with
                addition of capacity beyond the limits specified for the
                concerned sector, that is, projects or activities which
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                cross the threshold limits given in the Schedule, after
                expansion or modernization;
           (iii) Any change in product – mix in an existing
                 manufacturing unit included in Schedule beyond
                 the specified range.”
3.   The notification provided that the projects falling under categories
     A and B set out in the Schedule to the notification will require prior
     Environmental Clearance (EC) from the concerned Regulatory
     Authority. The Regulatory Authorities for different projects have been
     named in clause (2) of the first EC notification. For the A category,
     the Central Government in the MoEF was named as the Regulatory
     Authority. For projects in the B category, the State Environment
     Impact Assessment Authority (for short, ‘SEIAA’) was named as the
     Regulatory Authority. Various procedural aspects regarding applying
     for a grant of EC, its processing, etc., have been incorporated in
     the first EC notification. There were subsequent modifications to the
     first EC notification. Another notification was issued on 15th January
     2016 (for short, ‘the second EC notification’), by which the first EC
     notification was partly modified. Clause 7B and Appendix-IX were
     added to the first EC notification, providing for an exemption to
     specific categories of projects from the requirement of obtaining EC.
     Item 6 in the said Appendix-IX reads thus:
           “Appendix-IX
           Exemption of certain cases from requirement of
           Environmental Clearance
           The following cases shall not require prior environmental
           clearance, namely:
                .. .. .. .. .. .. .. .. .. .. .. .. .. ..
                .. .. .. .. .. .. .. .. .. .. .. .. .. ..
           6.   Dredging and de-silting of dams, reservoirs, weirs,
                barrages, river, and canals for the purpose of their
                maintenance, upkeep and disaster management.
                .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
     Though the NGT struck down a part of the second EC notification,
     Appendix-IX was not touched.
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4.   In the Original Application subject matter of these appeals, the
     challenge before the NGT was to the notification dated 28th March
     2020 (for short, ‘the impugned notification’), which modified earlier EC
     notifications. Appendix IX to the second EC notification provided for
     exempting certain cases from the requirement of obtaining EC. By the
     impugned notification, Appendix-IX was substituted. The substituted
     Appendix-IX provided that the prior EC will not be required in the
     thirteen cases set out therein. We are concerned with items 6 and
     7 of the substituted Appendix-IX, which read thus:
          “Appendix-IX
          Exemption of certain cases from requirement of
          Environmental Clearance: The following cases shall not
          require Prior Environmental Clearance, namely:-
          .. .. .. .. .. .. .. .. .. .. .. .. ..
          .. .. .. .. .. .. .. .. .. .. .. .. ..
          6. Extraction or sourcing or borrowing of ordinary earth for
          the linear projects such as roads, pipelines, etc.
          7. Dredging and de-silting of dams, reservoirs, weirs,
          barrages, river and canals for the purpose of their
          maintenance, upkeep and disaster management.
          .. .. .. .. .. .. .. .. .. .. .. .. ..”
     Thus, item 6 in Appendix IX of the second EC notification was
     maintained but was renumbered as item 7. Item 6 was newly added.
5.   Before we go into the challenge to the impugned notification, we must
     note here that items 6 and 7 were substituted by further notification
     dated 30th August 2023 (for short, ‘amended impugned notification’)
     issued during the pendency of these appeals. Substituted items 6
     and 7 in the amended impugned notification read thus:
          “6. Extraction or sourcing or borrowing of ordinary earth
          for the linear projects such as roads, pipelines, etc.
          shall be subject to the compliance of standard operating
          procedures and environmental safeguards issued in this
          regard from time to time.
          7. Dredging and de-silting of dams, reservoirs, weirs,
          barrages, river and canals for the purpose of their
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                         Noble M. Paikada v. Union of India


             maintenance, upkeep and disaster management shall be
             subject to the compliance of environmental safeguards
             issued in this regard from time to time.”
6.    The impugned notification was challenged on several grounds
      before the NGT by filing the Original Application subject matter of
      these appeals. Apart from other grounds, it was contended that the
      impugned notification violated the directions issued by this Court in
      the case of Deepak Kumar & Ors. v. State of Haryana & Ors1.
      Even the ground that the impugned notification was arbitrary and
      violative of Article 14 of the Constitution of India was invoked. We
      must note that in the Original Application, the specific challenge was
      only to item 6 of the impugned notification.
7.    By the impugned judgment, it was held that the exemption under
      item 6 should strike a balance. The finding recorded on this aspect
      in paragraph 8 of the impugned judgment reads thus:
             “8. The second issue is exemption from requirement of
             EC for extraction or sourcing or borrowing of ordinary
             earth for the linear projects such as roads, pipelines,
             etc and for dredging and de-silting of dams, reservoirs,
             weirs, barrages, river and canals for the purpose of their
             maintenance, upkeep and disaster management. It is
             possible to take a view that the EC can be exempted
             for these situations on account of assessment already
             made or for extraction of earth for linear project
             but such blanket exemption must be balanced by
             sustainable development concept. The exemption
             should strike balance and instead of being blanket
             exemption, it needs to be hedged by appropriate
             safeguards such as the process of excavation and
             quantum. Similarly, in respect of item 7, safeguards
             are required to be incorporated in terms of disposal
             of dredged material. These aspects are not shown to
             have been considered and the reply does not provide
             any explanation thereon. Learned counsel for the
             MoEFCC is also unable to provide any justification why
             these aspects be not addressed and incorporated in the


1    [2012] 4 SCR 819 : (2012) 4 SCC 629
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          notification for ensuring sustainable development concept
          which is required to be enforced by this Tribunal under
          section 20 read with section 15 of the NGT Act, 2010.”
                                                    (emphasis added)
     Accordingly, the Original Application was disposed of by directing
     the Ministry of Environment, Forest and Climate Change (for short,
     ‘MoEF&CC’) to revisit the impugned notification within three months.
     An application for review was filed, which was dismissed by the
     second impugned order dated 24th December 2020.
8.   Notice was ordered to be issued on 13th December 2021 on the
     appeals. On 10th August 2023, submissions were heard, and the
     judgment was reserved. After the judgment was reserved, the
     respondent-Union of India filed an affidavit of Dr Sujit Kumar Bajpayee,
     Joint Secretary, MoEF&CC, dated 12th September 2023. Along with the
     affidavit, two documents were also filed on record. The first document
     was the Office Memorandum dated 21st August 2023 issued by the
     MoEF&CC, purportedly laying down the enforcement mechanism for
     items 6 and 7 in the impugned notification. The second document
     brought on record was the amended impugned notification. In view
     of the issuance of the amended impugned notification, even after
     the verdict was reserved, the parties were permitted to make further
     submissions on the legality and validity of the amended impugned
     notification.
     SUBMISSIONS
9.   The learned senior counsel appearing for the appellant submitted
     that the object of the EP Act is to provide for the protection and
     improvement of the environment. She invited our attention to Section
     3 of the EP Act, which confers a power on the Central Government to
     take such measures as it deems necessary or expedient for protecting
     and improving the quality of the environment and preventing and
     abating environmental pollution. She pointed out that the first EC
     notification was issued in the exercise of powers conferred under sub-
     section (1) and clause (v) of sub-section (2) of Section 3 of the EP
     Act. Clause (v) empowers the Central Government to take measures
     for restrictions of the areas, in which any industries, operations or
     processes or class of industries, operations or processes shall not be
     carried out or shall be carried out subject to certain safeguards. She
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                        Noble M. Paikada v. Union of India


     also invited our attention to the EP Rules and, in particular, Rule 5
     thereof. It lays down that the Central Government may consider the
     factors set out in sub-rule (1) while prohibiting or restricting the location
     of industries and carrying out operations and processes in different
     areas. She pointed out that before issuing the first EC notification,
     the process laid down in sub-rule (3) of Rule 5 was followed.
10. The learned senior counsel invited our attention to a decision of this
    Court in the case of Hanuman Laxman Aroskar v. Union of India2.
    She also relied upon a decision of this Court in the case of Deepak
    Kumar1. She pointed out that as a result of item 6, there will not
    be any regulation of the extraction of ordinary earth for utilisation
    in linear projects, such as, roads, pipelines, etc. She submitted that
    such a blanket exemption will defeat the very object of enacting the
    EP Act and, in particular, Section 3 thereof. She submitted that the
    decision of this Court in the case of Deepak Kumar1 and subsequent
    decisions mandated that there must be a requirement to obtain EC
    for the minor minerals pertaining to materials used for linear projects.
    The learned senior counsel submitted that allowing the extraction of
    the earth in such an indiscriminate manner is wholly arbitrary and
    violative of Article 14 of the Constitution of India.
11. Inviting our attention to the amended impugned notification, the
    learned senior counsel pointed out that the substituted item 6
    provides that extraction of ordinary earth for linear projects shall be
    subject to compliance with the Standard Operating Procedure (SOP)
    and safeguards issued in this regard from time to time. Thus, the
    exemption remains. However, an SOP will be laid down to avail the
    exemption. She urged that the substituted item 6 is more arbitrary.
12. The learned senior counsel also pointed out that the whole issue
    was directed to be reconsidered under the impugned judgment.
    But nothing has been placed on record to show that the Central
    Government made reconsideration in true letter and spirit.
13. The learned senior counsel pointed out that the decision of this
    Court in the case of Deepak Kumar1 still holds the field, which
    directs that the leases of minor minerals, including their renewal
    for an area less than 5 hectares, shall be granted by the States/


2   [2019] 5 SCR 916 : (2019) 15 SCC 401
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     Union territories only after getting EC. She submitted that the
     impugned notification and the amended impugned notification,
     insofar as item 6 is concerned, are completely contrary to the
     directions issued by this Court in Deepak Kumar 1. She also
     urged that before publishing the draft of the impugned notification,
     objections to the draft notification were not invited. She submits
     that this action contravenes the provisions of sub-rule (3) of Rule
     5 of the EP Rules.
14. The learned Additional Solicitor General appearing on behalf of the
    respondent – Union of India, submitted that in view of the insertion of
    Section 8B in the Mines and Minerals (Development and Regulation)
    Act, 1957 (for short, ‘the MMDR Act’), the amendment to the first EC
    notification was required to be made. Our attention was invited to
    Section 8B, incorporated on 13th March 2020 and amended Section
    8B, effective from 28th March 2021. She submits that the provisions
    of the first EC notification must conform with the amended provisions
    of the MMDR Act, and therefore, the amendments were necessitated.
    She also pointed out that in terms of the impugned order, the matter
    was placed before the Expert Appraisal Committee (EAC), non-coal
    mining and EAC, MoEF&CC and others in a meeting. Thereafter, the
    issue was deliberated in the meeting convened on 30th June 2022
    under the chairmanship of the Joint Secretary of the concerned
    department. She invited our attention to the minutes of the said
    meeting held on 30th June 2022. She submitted that the ultimate
    endeavour is to uphold the principles of sustainable development.
    Relying upon the amended impugned notification, she submitted that
    now the exemption granted by items 6 and 7 cannot be said to be
    arbitrary, and it will be subject to compliance with the SOP issued
    on this behalf from time to time. Therefore, safeguards have been
    introduced, and the exemption is not blanket. She also pointed out
    that the Office Memorandum dated 21st August 2023 takes care of
    the safeguards. It was also submitted that the grant of exemption
    from the first EC notification is a matter of policy for the Central
    Government and no interference be called for with policy matters.
     CONSIDERATION OF SUBMISSIONS
15. We have carefully considered the submissions. The EP Act
    was brought into force on 19th November 1986. The statement
    of objects and reasons of the EP Act specifically refers to the
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                    Noble M. Paikada v. Union of India


     substantive decline in environmental quality due to increasing
     pollution, loss of vegetal cover, etc. It also notes the growing risk
     of environmental accidents and threats to life support systems. It
     refers to the decisions taken at the United Nations Conference on
     the Human Environment held in Stockholm in June 1972. In the
     said Conference, the world communities resolved to protect and
     enhance the environmental quality. Clause (3) of the statement of
     objects and reasons reads thus:
           “(3) In view of what has been stated above, there
           is urgent need for the enactment of a general
           legislation on environmental protection which
           inter alia, should enable co-ordination of activities
           of the various regulatory agencies, creation of an
           authority or authorities with advocate powers for
           environmental protection, regulation of discharge of
           environmental pollutants and handling of hazardous
           substances, speedy response in the event of accidents
           threatening environment and deterrent punishment to
           those who endanger human environment, safety and
           health.”
                                                  (emphasis added)
     Even from the preamble of the EP Act, it is apparent that the
     object is to provide protection to the environment and to improve
     the environment. Section 3 of the EP Act confers power on the
     Central Government to take measures to protect and improve the
     environment. Sub-sections (1) and (2) of Section 3 read thus:
           “3. Power of Central Government to take measures to
           protect and improve environment.-
           (1)   Subject to the provisions of this Act, the Central
                 Government, shall have the power to take all such
                 measures as it deems necessary or expedient
                 for the purpose of protecting and improving
                 the quality of the environment and preventing
                 controlling and abating environmental pollution.
           (2)   In particular, and without prejudice to the
                 generality of the provisions of sub-section (1),
                 such measures may include measures with
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        respect to all or any of the following matters,
        namely:--
        (i)    co-ordination of actions by the State Governments,
               officers and other authorities--
               (a)   under this Act, or the rules made thereunder,
                     or
               (b)   under any other law for the time being in
                     force which is relatable to the objects of
                     this Act;
        (ii)   planning and execution of a nation-wide
               programme for the prevention, control and
               abatement of environmental pollution;
        (iii) laying down standards for the quality of
              environment in its various aspects;
        (iv) laying down standards for emission or discharge
             of environmental pollutants from various sources
             whatsoever: Provided that different standards for
             emission or discharge may be laid down under
             this clause from different sources having regard
             to the quality or composition of the emission
             or discharge of environmental pollutants from
             such sources;
        (v)    restriction of areas in which any industries,
               operations or processes or class of industries,
               operations or processes shall not be carried
               out or shall be carried out subject to certain
               safeguards;
        (vi) laying down procedures and safeguards for
             the prevention of accidents which may cause
             environmental pollution and remedial measures
             for such accidents;
        (vii) laying down procedures and safeguards for the
              handling of hazardous substances;
        (viii) examination of such manufacturing processes,
               materials and substances as are likely to cause
               environmental pollution;
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                 (ix) carrying out and sponsoring investigations and
                      research relating to problems of environmental
                      pollution;
                 (x)    inspection of any premises, plant, equipment,
                        machinery, manufacturing or other processes,
                        materials or substances and giving, by order, of
                        such directions to such authorities, officers or
                        persons as it may consider necessary to take
                        steps for the prevention, control and abatement
                        of environmental pollution;
                 (xi) establishment or recognition of environmental
                      laboratories and institutes to carry out the
                      functions entrusted to such environmental
                      laboratories and institutes under this Act;
                 (xii) collection and dissemination of information in
                       respect of matters relating to environmental
                       pollution;
                 (xiii) preparation of manuals, codes or guides relating
                        to the prevention, control and abatement of
                        environmental pollution;
                 (xiv) such other matters as the Central Government
                       deems necessary or expedient for the purpose
                       of securing the effective implementation of the
                       provisions of this Act.”
                                                      (emphasis added)
     Section 3 of the EP Act must be read with Rule 5 of the EP Rules.
     Rule 5 has been enacted to give effect to clause (v) of sub-section (2)
     of Section 3 of the EP Act, which empowers the Central Government
     to put restrictions on the areas in which industries, operations or
     processes shall not be carried out or shall be carried out subject to
     certain safeguards. Rule 5 of the EP Rules reads thus:
           “5. Prohibition and Restriction on the location
           of industries and the carrying on processes and
           operations in different areas.
           (1)   The Central government may take into consideration
                 the following factors while prohibiting or restricting the
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              location of industries and carrying on of processes
              and operations in different areas-
              (i)    Standards for quality of environment in its
                     various aspects laid down for an area.
              (ii)   The maximum allowable limits of concentration
                     of various environmental pollutants (including
                     noise) for an area.
              (iii) The likely emission or discharge of environmental
                    pollutants from an industry, process or operation
                    proposed to be prohibited or restricted.
              (iv) The topographic and climatic features of an area.
              (v)    The biological diversity of the area which, in
                     the opinion of the Central Government needs
                     to be preserved.
              (vi) Environmentally compatible land use.
              (vii) Net adverse environmental impact likely to be
                    caused by an industry, process or operation
                    proposed to be prohibited or restricted.
              (viii) Proximity to a protected area under the Ancient
                     Monuments and Archaeological Sites and
                     Remains Act, 1958 or a sanctuary, National
                     Park, game reserve or closed area notified as
                     such under the Wild Life (Protection) Act, 1972
                     or places protected under any treaty, agreement
                     or convention with any other country or countries
                     or in pursuance of any decision made in any
                     international conference, association or other body.
              (ix) Proximity to human settlements.
              (x)    Any other factor as may be considered by
                     the Central Government to be relevant to the
                     protection of the environment in an area.
        (2)   While prohibiting or restricting the location of
              industries and carrying on of processes and
              operations in an area, the Central Government
              shall follow the procedure hereinafter laid down.
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           (3)   (a) Whenever it appears to the Central Government
                 that it is expedient to impose prohibition or
                 restrictions on the locations of an industry or
                 the carrying on of processes and operations
                 in an area, it may by notification in the Official
                 Gazette and in such other manner as the Central
                 Government may deem necessary from time to
                 time, give notice of its intention to do so.
                 (b) Every notification under clause (a) shall give
                 a brief description of the area, the industries,
                 operations, processes in that area about which
                 such notification pertains and also specify the
                 reasons for the imposition of prohibition or
                 restrictions on the locations of the industries and
                 carrying on of process or operations in that area.
                 (c) Any person interested in filing an objection
                 against the imposition of prohibition or restrictions
                 on carrying on of processes or operations as
                 notified under clause (a) may do so in writing to
                 the Central Government within sixty days from
                 the date of publication of the notification in the
                 Official Gazette.
                 (d) The Central Government shall within a period
                 of one hundred and twenty days from the date
                 of publication of the notification in the Official
                 Gazette consider all the objections received
                 against such notification and may within 1 [three
                 hundred and sixty-five days] from such day of
                 publication] impose prohibition or restrictions on
                 location of such industries and the carrying on
                 of any process or operation in an area.
           (4)   Notwithstanding anything contained in sub-
                 rule (3), whenever it appears to the Central
                 Government that it is in public interest to do so,
                 it may dispense with the requirement of notice
                 under clause (a) of sub-rule (3).”
                                                   (emphasis added)
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     SCOPE OF ADJUDICATION
16. As far as the scope of adjudication in these appeals is concerned,
    it is necessary to refer to the Original Application no.190 of 2020
    filed by the appellant. There were three prayers made in the said
    Original Application, which read thus:
          "(a) Pass an Order quashing newly inserted Clause 6 of
               the Impugned Notification dated 28.03.2020 as being
               violative of Article 14 and 21 of the Constitution of
               India, ultra vires the provisions of the EPA Act, 1986,
               the EIA Notification dated 14.09.2006, and in further
               violation of the Judgment passed by the Hon’ble
               Supreme Court in the Deepak Kumar case (supra);
          (b)   Pass an appropriate Order quashing the Impugned
                Notification dated 28.03.2020 as being violative of the
                principles of Polluter Pay, Non-regression, sustainable
                development and Precautionary Principle;
          (c)   Pass an appropriate Order directing the Respondent
                not to allow any mining of ordinary earth without a
                prior environmental clearance.”
     From the prayers mentioned above in clauses (a) to (c), it is apparent
     that the specific challenge was to item 6. Regarding clause (b),
     perhaps the only ground of challenge taken in the application was
     that no public interest was involved in exercising the power under
     sub-rule (4) of Rule 5 of the EP Rules for dispensing with public notice.
17. After perusal of the impugned judgment, we find that the submissions
    made by the learned counsel appearing for the appellant before the
    NGT were not recorded therein. The order dated 29th June 2021
    passed by this Court in the present appeals is relevant, which reads
    thus:
          “X(name masked), learned senior counsel appearing for
          the appellant, submits that the learned counsel appearing
          for the appellant before the National Green Tribunal
          argued that exemption could not have been granted by
          the Notification of the Ministry of Environment, Forest and
          Climate Change which has not been considered by the
          Tribunal. Y(name masked), learned counsel who appeared
[2024] 3 S.C.R.                                                            1265

                       Noble M. Paikada v. Union of India


           before the Tribunal, is directed to file an affidavit that he,
           in fact, raised this point before the Tribunal during the
           course of hearing.
           List the matter after two weeks.”
     The advocate filed an affidavit dated 11th December 2021. In paragraph
     5(a) of the affidavit, he stated thus:
           “5. .. .. .. .. .. .. .. .. ..
           (a) That the OA No. 190/2020 was listed for hearing before
           the Hon’ble Tribunal by way of video conferencing on
           28.10.2020. On that day the Deponent appeared before
           the Hon’ble Tribunal and was granted a hearing. During
           the course of the hearing the Deponent raised his
           submissions inter-alia including the fact that the
           Ministry of Environment and Forests did not have
           the power to exempt the removal of ordinary earth
           from the purview of the EIA Notification and that the
           exemption as granted for the removal of ordinary earth
           was illegal and ultra vires the Environment Protection
           Act as well as the judgment of this Hon’ble Court in
           Deepak Kumar’s Judgment. It is submitted that the
           aforesaid point was raised, however the Hon’ble Tribunal
           did not find merit in the said submission as is evident from
           the judgment dated 28.10.2020.”
                                                     (emphasis added)
     Thus, the Advocate-on-Record stated in the affidavit that what was
     argued before the NGT was the challenge to the exemption granted
     for the removal of ordinary earth for linear projects. We may note
     here that item 7 in the substituted Appendix-IX brought on record by
     the impugned notification was already there as item 6 in Appendix-IX
     to the second EC notification dated 15th January 2016. The appellant
     did not challenge the notification dated 15th January 2016. Even if
     we set aside or strike down item 7 regarding dredging/desilting in the
     impugned notification, it will continue to exist as item 6 in the second
     EC notification. The second EC notification is not under challenge.
     Therefore, we restrict the challenge to item 6 in the substituted
     Appendix-IX to the impugned notification.
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     CHALLENGE TO ITEM 6 IN THE IMPUGNED NOTIFICATION
     Failure to follow the procedure prescribed by sub-rule (3) of
     Rule 5
18. We have already quoted Rule 5 of the EP Rules. There is no
    dispute that the first EC notification, the second EC notification and
    the impugned notification were issued in the exercise of powers
    under sub-rule (1) of Rule 5 of the EP Rules. Sub-rule (2) of Rule
    5 provides that while passing an order prohibiting or restricting the
    location of industries and carrying on processes and operations, the
    Central Government shall follow the procedure laid down in Rule 5.
    Sub-rule (3) of Rule 5 requires the Central Government to publish
    a notice of its intention to do so in the official Gazette and in such
    other manner as the Central Government deems fit. Any person
    interested is entitled to file objections against the proposed prohibition
    or restriction. The Central Government is required to consider the
    objections before issuing the final notification. The said procedure
    was followed before publishing the first EC notification.
19. Sub-rule (4) of Rule 5 empowers the Central Government to dispense
    with the requirement of publication of notice under sub-rule (3) of Rule 5
    when it appears to the Central Government that it is in the public interest
    to do so. Thus, sub-rule (4) of Rule 5 is an exception to sub-rule (3).
    The exception can be invoked only on the grounds of public interest.
20. Now, we turn to the impugned notification dated 28th March 2020.
    The recitals of the said notification are important, which read thus:
           “S.O. 1224(E).—WHEREAS, vide the Mineral Laws
           (Amendment) Act, 2020 (2 of 2020), the Mines and Minerals
           (Development and Regulation) Act, 1957 (67 of 1957)
           (hereinafter referred to as MMDR Act) has been amended
           with effect from the 10th day of January, 2020 and, inter
           alia, new section 8B relating to the provisions for transfer
           of statutory clearances has been inserted;
           AND WHEREAS, sub-section (2) of section 8B of the
           MMDR Act provides that notwithstanding anything
           contained in this Act or any other law for the time being
           in force, the successful bidder of mining leases expiring
           under the provisions of sub-sections (5) and (6) of section
           8A and selected through auction as per the procedure
           provided under this Act and the rules made thereunder,
[2024] 3 S.C.R.                                                              1267

                       Noble M. Paikada v. Union of India


           shall be deemed to have acquired all valid rights, approvals,
           clearances, licences and the like vested with the previous
           lessee for a period of two years;
           AND WHEREAS, sub-section (3) of section 8B of the
           MMDR Act provides that notwithstanding anything
           contained in any other law for the time being in force,
           it shall be lawful for the new lessee to continue mining
           operations on the land, in which mining operations were
           being carried out by the previous lessee, for a period of two
           years from the date of commencement of the new lease;
           AND WHEREAS, in pursuance of the aforesaid amendment
           to the MMDR Act, the Central Government deems it
           necessary to align the relevant provisions of the notification
           of the Government of India in the erstwhile Ministry of
           Environment and Forests number S.O. 1533 (E), dated
           the 14th September, 2006 (hereinafter referred to as the
           EIA Notification, 2006);
           AND WHEREAS, the Ministry of Environment, Forest
           and Climate Change is in the receipt of representations
           for waiver of requirement of prior environmental
           clearance for borrowing of ordinary earth for roads;
           and manual extraction of lime shells (dead shell),
           shrines, etc., within inter tidal zone by the traditional
           community;
           Now, therefore, in exercise of the powers conferred
           by sub-section (1) and clause (v) of sub-section (2) of
           section 3 of the Environment (Protection) Act, 1986 (29 of
           1986), read with sub-rule (4) of rule 5 of the Environment
           (Protection) Rules, 1986, the Central Government, after
           having dispensed with the requirement of notice under
           clause (a) of sub-rule (3) of the rule 5 of the said rules,
           in public interest, and in supersession of the notification
           number S.O. 4307(E), dated the 29th November, 2019,
           hereby makes the following further amendments in the
           EIA Notification, 2006, namely:-
           .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
                                                           (emphasis added)
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     By the impugned notification, after sub-paragraph (2) of paragraph
     11 of the first EC notification, sub-paragraph (3) was inserted to give
     effect to Sections 8A and 8B of the MMDR Act. An entry has been
     made in the Schedule against Item 1(a) in column (5) for inserting
     a clause dealing with the evacuation or removal and transportation
     of already mined out material. Appendix IX, which contains the list
     of projects exempted from obtaining EC, was substituted by the
     impugned notification.
21. We have quoted above the recitals of the impugned notification. The
    first three recitals refer to the necessity of giving effect to Sections
    8A and 8B of the MMDR Act. Thereafter, the last recital refers to
    the Ministry receiving representations for waiver of the requirement
    of prior EC for borrowing of ordinary earth for roads. After that,
    without giving any details, it is mentioned that in the public interest,
    the requirement of publication of notice under sub-rule (3) of Rule
    5 was dispensed with. At this stage, we may refer to the relevant
    ground specifically taken in the Original Application filed by the
    appellant before the NGT. Ground J was specifically taken on this
    aspect, which reads thus:
          “J. Because the Respondent has deliberately and
          ostensibly circumvented the requisite procedures before
          issuing the Impugned Notification, including evading
          previous publication, inviting public objections under Rule
          5(3) of the EP Rules, 1986, and by wrongly exercising its
          powers under Rule 5(4) of the EP Rules under the garb
          of “public interest” during the Covid-19 national lockdown
          without offering even a shred of reasoning for its actions.
          It is most respectfully submitted that the amendments
          brought forth by the Impugned Notification serve and
          further the interest of private miners and contractors, and
          the actions of ratifying such illegal and mala fide acts of
          disregard and disobedience to environmental norms is in
          fact against public interest at large.”
22. We have carefully perused the counter affidavit filed by the MoEF&CC
    before the NGT. The said affidavit does not deal with Ground J at all.
    It does not specify or set out reasons for concluding that in the public
    interest, the requirement of publication of prior notice was needed to
    be dispensed with. It is pertinent to note that before the issue of the
    second EC notification by which Appendix-IX was incorporated, the
[2024] 3 S.C.R.                                                        1269

                    Noble M. Paikada v. Union of India


     procedure of inviting objections to the draft notification was followed,
     and the objections were considered. There is no reason to dispense
     with this important requirement before publishing the impugned
     notification. Article 21 guarantees a right to live in a pollution-free
     environment. The citizens have a fundamental duty to protect and
     improve the environment. Therefore, the participation of the citizens
     is very important, and it is taken care of by allowing them to raise
     objections to the proposed notification. After all, citizens are major
     stakeholders in environmental matters. Their participation cannot
     be prevented by casually exercising the power under sub-rule (4)
     of Rule 5.
23. In the present appeals, the questions of law (e) and (f) have been
    incorporated regarding the illegal invocation of the power under sub-
    rule (4) of Rule 5 of the EP Rules. In the grounds of the challenge,
    ground EE has been taken explicitly on this aspect. We have perused
    the counter affidavit filed by the MoEF&CC in these appeals. We
    find from the counter affidavit that the contention raised regarding
    the illegal invocation of power under sub-rule (4) of Rule 5 has not
    been dealt with. We are not going into the question of whether it
    was necessary for the Central Government to specify reasons in the
    impugned notification itself why it came to the conclusion that in the
    public interest, the requirement of public notice should be dispensed
    with. However, the reasons for the said conclusion ought to have been
    set out in the counter affidavit filed before the NGT or, at least, in the
    counter affidavit filed before this Court. The document recording the
    satisfaction of the competent authority about the existence of public
    interest and the nature of the public interest ought to have been
    produced by the Ministry. But, no such document was produced.
    Only one conclusion can be drawn. The drastic decision to invoke
    sub-rule (4) of Rule 5 was made without any application of the mind.
    Hence, the decision-making process has been vitiated.
24. The impugned notification was issued two days after the nationwide
    lockdown was imposed due to the COVID-19 pandemic. At that time,
    the work of linear projects, such as roads, pipelines, etc., had come
    to a grinding halt. So, there was no tearing hurry to modify the EC
    notifications. Apart from the fact that no reasons have been assigned
    in the counter affidavit filed by the Central Government for coming
    to the conclusion that in the public interest, the requirement of prior
    publication of notice was required to be dispensed with, we fail to
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     understand the undue haste shown by the Central Government in
     issuing the impugned notification during the nationwide lockdown.
     Therefore, the inclusion of item 6 of the substituted Appendix-IX
     will have to be held illegal. We have already given reasons for not
     dealing with the challenge to item 7 of the impugned notification.
     ARBITRARINESS
25. There is one more important ground for striking down item 6. But
    for item 6 in Appendix-IX to the impugned notification, for extraction,
    sourcing, or borrowing of ordinary earth for linear projects, prior EC
    would have been required in terms of the first EC notification. The very
    object of issuing the first EC notification incorporating the mandatory
    requirement of obtaining EC for projects was that the damage to the
    environment must be minimised while implementing projects. When
    an exception is sought to be carved out by incorporating Appendix-
    IX to the requirement of obtaining EC in the first EC notification, the
    exception must be specific. Item 6 grants exemption for “extraction
    or sourcing or borrowing of ordinary earth for linear projects, such as
    roads, pipelines, etc.” There is no specification about the quantum of
    ordinary earth, which can be extracted on the basis of the exemption.
    There is no specification of the area which can be used to extract
    ordinary earth. It is also not provided that only that quantity of ordinary
    earth, which is required to implement the linear projects, is exempted.
    Importantly, “linear projects” have not been defined. Without the
    definition, it is difficult to imagine which projects will be termed linear
    projects. The term “linear projects” is very vague. The process to
    be adopted for excavation has not been set out. Thus, item 6 is a
    case of completely unguided and blanket exemption, which is, per
    se, arbitrary and violative of Article 14 of the Constitution of India.
    There is no provision for setting up an authority which will decide
    whether a particular linear project is covered by item 6.
26. As stated earlier, during the pendency of the appeals, an amendment
    was made to item 6 by the notification dated 30th August 2023.
    Even the amended impugned notification does not elaborate on
    the concept of linear projects. The only addition to item 6 is that
    the extraction, sourcing or borrowing shall be subject to compliance
    with SOP and environmental safeguards issued in this regard from
    time to time. The authority to issue the SOP and environmental
    safeguards has not been specified. No provision has been made
[2024] 3 S.C.R.                                                       1271

                    Noble M. Paikada v. Union of India


     to enforce the SOP and environmental safeguards. No restriction is
     imposed on the quantum of ordinary earth, which can be extracted
     for linear projects. Therefore, even the amended item 6 continues
     to suffer from the same vice of arbitrariness, which Article 14 of the
     Constitution of India prohibits.
27. The learned Additional Solicitor General placed reliance on the Office
    Memorandum dated 21st August 2023. It provides that before carrying
    on activities mentioned in entry 6, the project proponents must notify
    the State Pollution Control Board/Pollution Control Committees. The
    State Pollution Control Boards are required to monitor the compliance
    status of the SOP/environmental safeguards. As entry 6 is arbitrary,
    the Office Memorandum is of no consequence. Hence, on account of
    the violation of Article 14, item 6 in the impugned notification, as well
    as the amended impugned notification, will have to be struck down.
    As noted earlier, the object of the EP Act is to protect and improve the
    environment. Apart from the illegality committed by non-compliance
    with sub-rule (3) of Rule 5 of the EP Rules, the exemption granted
    without incorporating any safeguards is completely unguided and
    arbitrary. Grant of such blanket exemption completely defeats the
    very object of the EP Act.
     NON-COMPLIANCE WITH THE DIRECTIONS OF THE NGT
28. In paragraph 8 of the impugned order, which we have quoted earlier,
    the NGT observed that the blanket exemption needs to be hedged
    by appropriate safeguards, such as, the process of excavation
    and quantum. Therefore, in paragraph 9, a direction was issued
    to MoEF&CC to revisit the impugned notification in the light of the
    observations made in paragraph 8. Within the three months provided
    by the NGT to do so, no steps had been taken to revisit item 6 of
    the impugned notification.
29. The Ministry has filed an additional affidavit dated 18th July 2023,
    and reliance has been placed on the guidelines for sand mining.
    As far as item 6 is concerned, in the counter affidavit, reliance
    was placed on the Office Memorandum dated 8th August 2022,
    purportedly issued in terms of the directions issued in paragraph 9 of
    the impugned judgment. It records that item 6 shall be subject to the
    SOP attached to the said Office Memorandum. We have perused the
    said SOP. We find that the SOP creates no regulatory machinery to
    ensure the implementation of the terms of the SOP. The SOP does
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    not refer to item 6 at all; it merely refers to the activities relating to
    the identification to borrow areas to obtain earth or soil materials. It
    does not refer to extracting ordinary earth for linear projects, such
    as roads, pipelines, etc. Therefore, the said SOP can hardly be said
    to be in terms of what the NGT ordered the Central Government to
    do in terms of paragraphs 8 and 9.
30. We are not entertaining a challenge to item 7 of the impugned
    notification. As none of the respondents have challenged the
    impugned notification, they will have to implement the directions
    issued in terms of paragraph 9 of the impugned judgment regarding
    item 7.
31. Thus, notwithstanding the specific directions issued in paragraph
    8 read with paragraph 9 of the impugned judgment, no safeguards
    have been provided, such as laying down processes, the mode and
    the manner of excavation and quantum.
32. Therefore, we have no hesitation in striking down item 6 of the
    substituted Appendix-IX forming part of the impugned notification
    dated 28 th March 2020 and item 6 of the amended impugned
    notification dated 30th August 2023. Accordingly, we quash item 6
    in the two notifications above.
33. The appeals are, accordingly, partly allowed on above terms. There
    will be no order as to costs.

    Headnotes prepared by: Divya Pandey                  Result of the case:
                                                       Appeals partly allowed.